by Mitch Kokai
Senior Political Analyst, John Locke Foundation
State governments still mean something. They are still sovereign. They retain meaningful power of self-governance, and federal judges are just not supposed to take over their legislatures’ powers without a specific legal mandate.
This is the most important implication of last week’s decision in Rucho v. Common Cause, the partisan redistricting case. Chief Justice John Roberts and the majority invoked the well-known legal doctrine of the “political question,” which refers to issues that are supposed to be decided by the elected branches of government and not by judges.
Although Justice Elena Kagan expressed some puzzlement about this in her dissent, she has surely heard of the “political question.” This doctrine has been invoked repeatedly in recent years — for example, by courts blocking lawsuits over global warming. Just as federal lawsuits cannot be used in lieu of legislation to formulate climate policy, federal courts cannot take over state governments’ responsibilities to create legislative and congressional districts after each census.
To be sure, there are federal laws, provisions in the U.S. Constitution, and prior Supreme Court cases that govern redistricting. It’s just that none of them has anything to do with party balance in legislatures.